§ Lorna FitzsimonsTo ask the Secretary of State for the Home Department what approach the Government are taking in relation to statements about the compatibility of new legislation with the Convention rights set out in the Human Rights Act 1998. [83540]
§ Mr. StrawA statement under section 19(1)(a) of the Human Rights Act may be made where, in the view of the Minister, the provisions of the Bill are compatible with the Convention rights. In other cases a statement under section 19(1)(b) of the Act should be made: such a statement is not one that the provisions of the Bill are incompatible with the Convention rights but only one to the effect that the Minister is unable to make a statement of compatibility. A section 19(1)(a) statement is a positive statement of compatibility.
If a section 19(1)(a) statement is to be made, a Minister must be clear that, at a minimum, the balance of argument supports the view that the provisions are compatible. Lawyers will advise whether the provisions of the Bill are on balance compatible with the Convention rights. In doing so, they will consider whether it is more likely than not that the provisions of the Bill will stand up to challenge on Convention grounds before the domestic courts and the European Court of Human Rights in Strasbourg. A Minister should not be advised to make a statement of compatibility where legal advice is that on balance the provisions of the Bill would not survive such a challenge. The fact that there are valid arguments to be advanced against any anticipated challenge is not a sufficient basis on which to advise a Minister that he may make a statement of compatibility where it is thought that these arguments would not ultimately succeed before the courts.
Section 19 of the Act applies where a Minister of the Crown is in charge of a Bill, that is, either a Government Bill or a Consolidation Bill. Section 19 does not apply to Private Members' bills: there is no duty to make a statement about their compatibility with the Convention rights. Where the Bill is directly assisted by the Government, however, the Minister responsible for the policy should, as a matter of good practice, express the Government's views on compatibility with the Convention rights during the Second Reading debate.